COURTS CANNOT RULE BEYOND THE LAW

Since the Supreme Court's decision in the now-famous "Baby Richard" case, many highly emotional and highly critical words have been written about the court and the justice who authored the decision. One hopes, however, that there is room for a few more words about the case, words that are neither inflammatory nor derogatory but which rather seek only to provide a better understanding of both the court's handling of the case and the appellate process in general.

The Illinois Appellate Court and the Supreme Court are classified as courts of review. As such, neither court hears evidence or observes the demeanor of the witnesses or assesses their credibility. By law, this is done by the trial court. If a party is dissatisfied with the judgment of the trial court, then that party has a right to seek review by the appellate court.

The appellate court's job is not to decide the case anew, but rather to determine whether the trial judge erred in the decision. The court is limited to a review of matters that already have been heard, seen and evaluated.

If a party is dissatisfied with the ruling of the appellate court, that party then has the right to petition the Supreme Court to review the judgment of the appellate court. The Supreme Court need not, and indeed does not, consider all the cases which it is asked to decide.

Although much has been written about the best interests of the child with respect to the Baby Richard decision, a reading of both the appellate court and Supreme Court's opinions in this case reveals that the issue was simply not legitimately before the reviewing courts. In order for Baby Richard to be available for adoption under the Illinois Adoption Act, the father who did not consent to adoption must have been found to be unfit before his parental rights could be terminated. From a review of the appellate court opinion, it is clear that the parties themselves argued to the court that "the best interest of the child should not be considered when determining whether a parent is unfit."

As Supreme Court Justice Mary Ann McMorrow said: "Irrespective of the court's liking or agreement with that law, the court is duty-bound to follow that law. Under that law, parental unfitness must be proven by clear and convincing evidence before the court can proceed, in an adoption hearing, to consider any other issue." In short, the reviewing court was not called upon to, and indeed could not legitimately, pick which set of parents would make the better home for Baby Richard.

Regardless of whether any of us like the outcome of this case, all that a court of review can ever be expected to do is to adhere to its duty to follow the law. Neither the appellate court nor the Supreme Court enacts legislation for this state. That is the job of the General Assembly. It is the job of the courts of review to interpret statutory language, if interpretation is necessary due to ambiguity, and to apply the statutory language as written if it is clear.

All the citizens of Illinois, including the members of our courts of review, share a concern for the well-being of this child and, indeed, for any child who is a citizen of this state. Equally so, however, all of our citizens share a desire for our courts of review to perform their duties in adherence to the rules of law enacted by the General Assembly. Adherence to the law cannot and should not rise and fall with the tides of public emotion.